*523Rehearing denied January 10, 1922.
On Petition for Rehearing.
(203 Pac. 319.)
Mr. Frank 8. Grant, City Attorney, and Mr. E. Y. Lansing, Jr., Deputy City Attorney, for the petition.
Mr. Wilbur Henderson, contra.
In Banc.
A petition for rehearing has been interposed on benalf of the City of Portland. No new question is presented. Error in the former opinion is asserted.
On November 29, 1916, defendant, Paul Tates, procured from the City of Portland a permit to construct an electric sign at 125% Sixth Street in the city. He constructed the sign under the provisions of Ordinance No. 30,332, at a cost, of $350. The sign was inspected and accepted by the proper officers of the city. It is admitted that the sign is now securely hung and does not in any way interfere with the traffic on the street or sidewalk. It is in no way a menace or inconvenience to the public, and does not interfere with the personal or property rights of any citizen, but conforms to the provisions of the ordinance under which it was constructed. About July 3, 1918, the common council of the City of Portland enacted Ordinance No. 34,278 relating to the maintenance of electric signs in the city, so that the defendant’s sign does not strictly conform to the requirements of the present ordinance. He obtained no permit under the later ordinance, and was convicted and fined for maintaining an electric sign in *524violation of the new ordinance. In onr former opinion we held in effect that Ordinance No. 34,278 was enforceable as to the fntnre construction of electric signs in the city, hut that the sign in question being in perfect condition, and not in any way a nuisance, the city could not at will require the same to be destroyed or require the defendant to remove it without some good reason.
We applied the principle that the City of Portland, by virtue of the authority of its charter and general powers, having under the provisions of a general ordinance, granted to defendant a permit, or license to erect an electric sign, and the defendant having accepted the same and constructed a sign pursuant to the permit, and in conformity to the ordinance at considerable expense, thereby creating a condition in the nature of a contractual relation between the city and the holder of the permit, could not revoke the permit at its mere will, or unless the sign was in some way an inconvenience or menace to the public by reason of changed conditions in the sign or its surroundings, so as to be a proper subject for the further exercise of the police power by the municipality.
As we understand the city’s brief on the petition for a rehearing, this principle of law is condemned, and plaintiff contends that the will of the city legislators should control in the matter; and that the question of the reasonableness of the municipal law should not be investigated by the courts.
There is but little question as to what the law governing the matter is. The controversy arises in regard to the application of the principle which we have announced and to which we still adhere. The *525learned city attorney refuses to be comforted, and fails to construe tbe former opinion as it was intended. That part of the former memorandum comprising a lengthy statement of the position of the city, taken from its brief, a portion of which was quoted, is in part magnanimously. but erroneously credited to the court.
The contention of the city is to the effect that the municipal officers, in conformity to the general and charter powers conferred upon the city, may pursuant to a general ordinance duly adopted, in order to encourage the making of improvements in the city, grant permits authorizing the erection of electric signs over the sidewalks and the construction of vaults and rooms under the same, and many other minor privileges in the streets, none of which in any way interferes with the public use of the street or affects the safety of any person, or is obnoxious or objectionable; and after such permits are granted, the holders accept the same and erect structures costing thousands of dollars, all under the supervision and with the approval and acceptance of the proper city officials, a part or all of which, are within the limits of the public streets; and then after a year or so has elapsed, and perchance there has been a change in a part or all of the city officials, the city government may, at its will, and for no good reason, by an ordinance changing the general regulations in minor particulars, condemn and make unlawful all of the structures so erected, require the electric signs to be removed, the vaults or rooms under the sidewalks adjacent to hotels, department stores, wholesale and retail store buildings and other buildings large and small to be tom out, and thereby despoil property *526constructed at great expense pursuant to what are practically contracts between the city and the builders, or subject the builders of the permitted structures to prosecution for a quasi crime, for the infraction of the ordinance. The latter method was pursued in the present case. To say the least, the grant of such power or “discretion” to the municipal authorities would be dangerous. It is difficult to believe that the same is understandingly craved. It seems needless to say that the same principle would govern in regard to permits for the different privileges or structures referred to. The motive of the municipal officials is not questioned.
We will not repeat the contents of our former memorandum. In order to make it plain it may not be amiss to borrow the language of some of the text-writers and courts upon the subject:
In 3 Dillon, Mun. Corp. (5 ed.), Section 1178 et seq., that eminent author discusses the subject of vaults under sidewalks, areas, etc. Section 1178 contains this language:
“In many cities lot proprietors upon streets are permitted or not forbidden to make openings in the sidewalks, in order to obtain an entrance into the basement or cellar. It is also the usage that owners of bnildings may make openings under the sidewalk or street to obtain additional cellar-room.”
In Gregsten v. Chicago, 145 Ill. 451 (34 N. E. 426, 36 Am. St. Rep. 496), it was held that, quoting from the syllabus:
“It is the general doctrine that municipalities, under the power of exclusive control of their streets, may allow any use of them consistent with the public objects for which they may be held.
*527“A city under special legislative authority, as well as its general powers, may grant permits for and regulate the building of vaults under the streets, alleys and sidewalks, and require such compensation for the privilege as it may deem reasonable and just, when such permits relate solely to such use of the alleys, etc., as is in no wise inconsistent with their use by the public; and such permit, when accepted and acted on by the holder by making costly improvements required, will constitute a contract between the city and such holder, irrevocable at the mere will of the city.”
In the case of Everett v. Marquette, 53 Mich. 450 (19 N. W. 140), the owner of a building obtained permission of the common council of Marquette village to make openings in the sidewalks for stairways to the basement. The stairways were constructed and used with proper railings for the protection of the public. Afterwards Marquette was incorporated as a city. In 1878 the common council directed the stairways to he removed as illegal and the openings to be closed. Chief Justice Cooley in considering the case used this language:
“It is undoubted that the council had general control of the streets under the village charter; and it was a part of its duty to prevent the creation of any public nuisance within them. It is not to be assumed that consent would have been given to such a nuisance, and when, by formal resolution the counsel assumed to give permission to complainant to make the openings and build the stairways complained of, it must have been done in the belief that no public inconvenience would follow. If the permission was effectual for no other purpose, it at least rebutted any presumption which might otherwise have existed, that this partial appropriation of the street was per se a nuisance.
*528“If the permission was a mere license, and the subsequent action of the city council is to be regarded as a revocation of the license, it does not follow that the plaintiff has by the revocation immediately been converted into a wrongdoer. The question will then be whether the act of the complainant in maintaining his structure constitutes a public nuisance; and while the city council is entitled, under its supervisory control of the public streets, to consider and pass upon that question for the purpose of deciding upon the institution of legal proceedings for abatement, it cannot make itself the judge.”
He then went on to say that such questions should be tried out in the regular courts, and concluded by saying:
“The city in this case was proceeding in an act of destruction on an assumption that the structures were already condemned as illegal. This was unwarranted, and it was quite right that the action should be restrained.”
In Mayor etc. of Baltimore v. Nirdlinger et al., and Nirdlinger et al. v. Mayor etc. of Baltimore, 131 Md. 600 (102 Atl. 1014), the Court of Appeals of Maryland considered permits issued by a municipal corporation for various “minor privileges” of the use of the street, such as bay-windows, show-windows, porches, signs and the like. Seven bills in equity were. filed to enjoin the city officers from interfering with the “minor privileges” connected with, or related to, the buildings of the respective parties. We quote therefrom the kind language used by Chief Justice Boyd, as follows:
“It can make no difference to the public in the use of a street whether a vault, areaway, pole, sign, coal-hole, marquee, or show-window is paid for or is free; for it is just as much an obstruction in the one ease as in the other. Indeed, it might well be contended *529that legislation authorizing a municipality to charge for such privileges to some extent recognizes the necessity for them, as it is not to be presumed that the legislature would grant the power exclusively as a revenue measure, and when they do materially obstruct the public they ought not to be granted, unless there is some real necessity for them. But when they are granted and paid for, or were granted at a time when no money value to the city for them was taken into consideration, hut the authorities deemed it proper, possibly desirable, for the city to allow them, and the parties were induced to construct their buildings accordingly, instead of keeping hack of the building line so they could keep them on their own ground, or to erect costly improvements, the successors in office of those who granted them ought not to be required, in the discharge of their duties as they understand them, to repudiate the action, or even inaction, with knowledge of what was being done, of their predecessors in office, if that must result in great injury or gross injustice to those who acted in good faith upon the grant, permission, or consent of those in power at the time, unless there is no other proper course for them to pursue.”
Electrical signs beautify and illuminate the streets and the city. When constructed in strict conformity to the municipal law and with the approval of the constituted city authorities they ought not to be rendered illegal without any good reason. Their owners should not be penalized for maintaining them unless they become out of repair, or interfere to some extent with the use of the street, or are shown to be in some way objectionable. The record in this case shows the reverse.
5. The burden of showing facts which demonstrate that the later ordinance] as it affects defendant’s sign is unreasonable was on the defendant. This burden *530he has borne by showing the facts to which we have referred.
6. On the other hand, if the sign in question should become objectionable or unsafe, or under changed conditions should interfere with the use of the street or sidewalk, and it becomes necessary in the exercise of the police power to remove the same, the city would have authority to take proper proceedings to abate the nuisance or remove the obstruction. Stated differently, the public right in the street is paramount, and the abutter’s right to proper use of the street in front of his property, is subject to reasonable municipal and police regulations: Ivins v. Trenton, 68 N. J. L. 501 (53 Atl. 202). The latter case and also City of St. Louis v. St. Louis Theatre Co., 202 Mo. 690 (100 S. W. 627), are cited on behalf of the city. The principle enunciated in the last-named case, which we apply, is couched in the following language :
“If a municipality, by an express grant, authorizes an invasion of a public street, and such invasion does not seriously injure and infringe upon the public use thereof, then such municipality might not be allowed by subsequent ordinance to divest the party, who has acted upon this express grant, of the rights which have accrued by this contractual relation.”
Other prominent cases cited by plaintiff are District of Columbia v. R. P. Andrews Paper Co., and other like cases, 255 U. S.- (66 L. Ed.-, 41 Sup. Ct. Rep. 545). In these cases the District of Columbia granted permits to property owners under a general building ordinance permitting the construction of vaults under sidewalks. The acceptance reads in part thus:
*531“This permit is accepted with the understanding that the occupation of the vault space is permitted merely as an accommodation to the owner of the abutting premises, and that no right, title, or interest in the public is in any way abridged thereby, except as expressed in said permit and the conditions aforesaid. ’ ’
Later Congress authorized the District of Columbia to assess and collect rent from all users of space occupied under the sidewalks and streets in the District of Columbia. The congressional act authorizing the collection of the rent was sustained. This means that under certain conditions a reasonable charge may be made under an act of Congress, for the use of space occupied in a street: See 28 Cyc. 888 (VI). These cases were entirely .different from the one at bar. The plaintiff is not merely exacting rent from defendant.
It is said in plaintiff’s brief on petition:
“However, the court states in its opinion, that the ordinance under consideration does not tend to promote public health, safety, morals or welfare; that it cannot be claimed that the requirements of the new ordinance are in the interest of the morals or general welfare of the public.”
That is not the language of our former opinion. The misconception appears to be brought about by inserting the word “ordinance” where the court referred to the change required in the “sign.” If the writer has not used plain language, it is to be hoped that the quotations of others will be understood.
The petition for rehearing is denied.
Beheabing Denied.
*532•Objection to costs sustained January 10> 1922.
On Objections to Costs.
(203 Pac. 319.)
In Banc.
A motion to retas costs has been filed, and will be treated as objections to the costs in the case, as the motion contains snch objections.
7. The action is brought for an alleged violation of city ordinances. There is no statutory or city law mating the city liable to a judgment for the payment of costs where it fails in a prosecution for. a violation of an ordinance. In the absence of snch a law, no judgment can be rendered for costs in a crimina] or quasi-criminal action when the defendant is acquitted: 11 Cyc. 278, par. 6; Village of Sparta v. Boorom, 129 Mich. 555 (89 N. W. 435, 90 N. W. 681); Preston v. Koshkonong, 55 Wis. 202 (12 N. W. 440). Prosecutions under penal ordinances are quasi-criminal actions: 19 R. C. L. 811; Ex parte Howe, 26 Or. 181 (37 Pac. 536).
The objections to costs are sustained. Defendant will not be allowed costs or disbursements.
Objections to Costs Sustained.